Summary
observing that mutually fighting was not proof of an agreement to fight, nor was evidence of the victim being mad, throwing things, and kicking the accused
Summary of this case from Herrera v. StateOpinion
NO. 02-15-00173-CR
08-26-2016
DON REED APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2012-2654-C MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
In three issues, Appellant Don Reed appeals his conviction for assault. See Tex. Penal Code Ann. § 22.01 (West Supp. 2016). We affirm.
Background
This appeal arises out of an altercation between Appellant and his girlfriend, Miriam. As a result of the altercation, Appellant was indicted for assaulting Miriam, a person with whom he had a dating relationship, by impeding her breath, a third-degree felony. See id. § 22.01(a), (b)(2)(B).
In accordance with rule 9.8, we refer to children and family members by aliases. Tex. R. App. P. 9.8(b) & cmt.
At trial, the jury heard the audio recording of a 9-1-1 call placed shortly after midnight on July 15, 2012, by Kendra, Miriam's then-11-year-old grandchild. Kendra's first words in the recording were, "My Pawpaw is putting his hands on my grandma." In the background, a man and a woman could be heard arguing. Kendra then began to cry audibly as she told the 9-1-1 operator that she was scared and that her grandfather was hitting and slapping her grandmother. After almost five minutes, Miriam got on the phone and told the 9-1-1 operator that Appellant had entered the home and "jumped on [her]." She said that he hit her and was "choking her" and that she "had scratches." She also said that he was drunk, banging on her door, and trying to get the keys to drive his car away.
Kendra, her mother, and Kendra's younger sister, who was four at the time, lived with Miriam.
Officers Jennifer Cackler and Joseph Kaufman of the Carrollton Police Department responded separately to the 9-1-1 call dispatch. Officer Kaufman reached the apartment first and made the initial contact with Miriam. At trial, Officer Kaufman described Miriam as "distraught" and testified that it took him some time to "get her to calm down to where [he] could actually kind of make sense of what was going on." Officer Kaufman also testified that he noticed scratches along Miriam's neck and chest area.
Officer Kaufman testified that Kendra and Miriam's downstairs neighbor were also present when he arrived.
A video recording taken by a camera on Officer Kaufman's police car did not visibly capture his conversations with Miriam, but it did record some of the audio of their interactions. This video was admitted into evidence and played for the jury. On the video, Miriam can be heard describing the altercation:
The audio recording on the video was not clear at times due to Officer Kaufman's distance from his patrol car.
Miriam: [inaudible] my girlfriend had took me to the [inaudible] on Belt Line and Midway. I came back, he had told me I was lying, call her, he had the phone, he yanked it out of my hand, I was trying to call her, he just started hitting me. So I—I—I tried to defend myself the best that I could because he's a big man so—he just kept on, he broke all that stuff, slammed it over me, all of it, did all of this [inaudible] he—he was trying to kill me.
Officer Kaufman: He was strangling you?
Miriam: He was strangling me.
While Officer Kaufman spoke to Miriam, Officer Cackler located Appellant in the apartment complex's pool area, where he appeared to be attempting to hide underneath a lawn chair. Officer Cackler asked Appellant, who she described as cooperative, to come over to her, and he climbed over the gate leading into the pool area to reach her. At this point Officer Cackler noticed that Appellant smelled of alcohol and had red, bloodshot eyes. According to Officer Cackler, Appellant told her that "he had been in a verbal argument with his girlfriend but there had not been any kind of physical altercation between the two." At that point, Officer Cackler summoned Officer Kaufman over to speak with Appellant.
Officer Cackler described Appellant as "sitting underneath [the lawn chair], and the lawn chair was pulled up over him."
Officer Kaufman testified, "I asked him what had happened. He admitted that they had gotten into it. He was upset that when he called no one answered, and so he was afraid that the granddaughter was home alone. He admitted to a verbal disturbance but said there was nothing physical." Officer Kaufman also observed signs of intoxication—describing Appellant as unsteady on his feet, swaying back and forth, with "droopy, watery, bloodshot eyes" and a "strong odor of an alcoholic beverage about his person."
In the video recording, when Officer Kaufman asked Appellant if he had grabbed Miriam by the neck, Appellant said, "We had a problem," but denied grabbing her by the neck.
Officer Kaufman placed Appellant under arrest, and Officer Cackler transported him to jail while Officer Kaufman returned to the apartment in order to obtain a written statement from Miriam. Officer Kaufman also obtained a written statement from a neighbor and took photos of Miriam and the apartment.
Once Officer Cackler arrived at the jail with Appellant, she took photos of him. At trial, she described the photos to the jury, noting either makeup or blood on his shirt, his red and bloodshot eyes, what appeared to be dried blood on his lips, and cuts on his thumbs.
In the video recording, Miriam can be heard telling Officer Kaufman that Appellant broke the phone when she tried to call 9-1-1, and that he also broke her glasses and her lamp. At trial, Officer Kaufman recalled that Miriam told him that Appellant strangled her for approximately one to two minutes, that she had almost lost consciousness, and that while Appellant was choking her, she had been afraid that she was going to die. Officer Kaufman testified, "I recall asking her about how hard she thought he was squeezing around her neck, and she—she said, in her words, a hundred percent."
Officer Kaufman testified that Miriam also reported to him that she "had somewhat of a sore throat and was having difficulty swallowing." On the video recording, Miriam answered "Yes" when Officer Kaufman asked if she had experienced difficulty breathing when Appellant was choking her. When Officer Kaufman asked if Appellant had hurt her before, Miriam responded, "No. This was his first and last." She also asked for an emergency protective order and said she would not invite him back to the house.
Officer Kaufman took photos of Miriam before leaving the scene, and these photos depict visible scratches on Miriam's chest leading to her neck. Officer Kaufman testified that there were no handprints on her neck, but he added that, in his experience, it is not uncommon for no visible hand or thumbprints to be left behind when someone is strangled.
At trial, Miriam testified that she dated Appellant on and off for about ten years, and although they were no longer dating at the time of trial, they remained friends, and she still loved him. On the night of July 14, 2012, Miriam had gone out to a Mexican restaurant with a girlfriend to celebrate her upcoming birthday. Miriam testified that while she was at the restaurant, Appellant called the home, spoke with Kendra, and became concerned that Kendra was home alone. Shortly after Miriam returned home, Appellant arrived at the apartment, came into her bedroom where she was sitting on the bed, and asked her where she had been. Miriam testified that he was not upset with her, but she also testified that Appellant did not believe that she had been out with a girlfriend. According to Miriam, when she tried to call her girlfriend on the phone to verify the truth of her story, Appellant became upset, and he took the phone out of her hand and broke it. Appellant and Miriam then began to argue, and at some point he hit her on the arm. Miriam then picked up a lamp to use to strike Appellant with, and she testified that she was "pretty sure" she was successful in doing so.
Miriam admitted that she did not want to testify, and she vacillated in her testimony as to whether Appellant had choked her. At times, Miriam denied that Appellant had choked her and testified that they were both fighting with each other. When asked if Appellant put his hands around her throat, Miriam responded that he held her down, but "not around [her] neck," because she had a box cutter in her hand. But Miriam also admitted that Appellant said, "B***h, I'll kill you," when he was choking her, that she told Officer Kaufman that Appellant had strangled her, and that she had provided a written statement to the police that he had choked her.
On her recross-examination of Miriam, Appellant's counsel asked, "You're not in here to try to lie; is that right?" and Miriam answered, "No. I'm trying to fix it where—I don't know. Oh, Jesus. Yes, ma'am." In response to a later question, Miriam answered, "I mean, do you need a yes or a no or I don't . . . ."
Miriam tried to explain her statements to police by saying that she was mad at the time, that she could "handle [her]self," and that it had been a mutual fight. Miriam testified that she did not recall telling the officer how much force Appellant used, whether it had prevented her from breathing, whether her throat was sore, whether she had any trouble swallowing, whether she was lightheaded or going to pass out, or that she thought Appellant was going to kill her. When asked if she thought that she may have exaggerated the events of that evening because she was upset, Miriam said, "Yes." When asked, "And you're telling this jury at no point did [Appellant] put his hands around your neck?" Miriam answered, "He—he did not, ma'am." She further testified, "it's done and it's over with. [Appellant] is a good man. . . . [C]ome on now. I just want it done with. It's been prolonged for three years. Three years is a long time."
Miriam testified, "I might have said strangled to the officer, but [Appellant] never tried to strangle me. . . . I can handle myself."
Miriam explained that she had signed two affidavits of nonprosecution, one in 2013 and one in January of 2014, both requesting that the District Attorney not prosecute the charges against Appellant. In the first affidavit of nonprosecution, Miriam stated that she had not told the officer everything on the night of the altercation and that she and Appellant had been in a mutual fight.
Investigator Gerald Hoenig of the District Attorney's Office testified that he had worked on this case and that Miriam was initially cooperative but became less so as time went on, stating that "she became more difficult and more reluctant to be cooperative" each time he attempted to serve her with a subpoena to appear in court. Investigator Hoenig continued, "In fact, she said that she did not want to come to court and she just wanted the whole issue to go away."
Cassidy Baker, a former victim intervention specialist in the felony family violence division of the District Attorney's Office, also testified to Miriam's initial cooperation and her later reluctance to cooperate. Baker testified that she had spoken to Miriam on August 8, 2012, shortly after the altercation, and Miriam had confirmed the accuracy of the statement she had given to the police on July 15. Miriam also reported to Baker during that phone call that Appellant had apologized for the altercation and told her that he was willing to face the consequences of his actions. Baker testified that Miriam never told her during that phone call that Appellant did not choke her. Baker further testified that in January 2013, Miriam came to the office and spoke with her in an attempt to have the charges against Appellant dropped. Baker did not recall Miriam stating during that meeting that Appellant did not choke her and testified that, if Miriam had told her that, Baker thought she would have reflected that in her notes. Baker further testified that it was not uncommon for complainants to be uncooperative or to change their stories after the incident.
At the time of trial she was employed at the University of North Texas.
The jury found Appellant guilty, and Appellant was sentenced to nine years' imprisonment.
Discussion
I. Impeding breath
In his first issue, Appellant argues that there was legally insufficient evidence that he ever choked or strangled Miriam or impeded her breath.
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. SeeMontgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49.
Appellant relies upon Miriam's trial testimony in arguing that there was insufficient evidence to show that he impeded Miriam's breath, including her statements, "I'm not going to say he put his hands around my throat," and "[Appellant] never tried to strangle me." While at trial Miriam did attempt to distance herself from the statements she previously made to police—both verbally and in writing—on the night of the altercation, the record indicates that Miriam's statements at the scene were consistent. Miriam told the 9-1-1 operator that Appellant had come into her apartment, "jumped on her," hit her, scratched her, and choked her. She told Officer Kaufman that Appellant had hit her, that he broke her phone, her lamp, and her glasses, that he "was trying to kill [her]," and that he had strangled her. She elaborated to Officer Kaufman that Appellant had used "100%" force when choking her, that she had had a hard time breathing, and that, even after the altercation, she had a sore throat and some difficulty swallowing. At trial, Miriam admitted that Appellant had said, "B***h, I'll kill you" while he was choking her. And the jury heard Baker testify that, shortly after the incident, Miriam confirmed that the statement she had given to the police on the night of July 15 was correct.
In addition, the jury had the benefit of the recorded conversation between Miriam and the 9-1-1 dispatcher and the recorded conversation between Miriam and Officer Kaufman, which substantiated Officer Kaufman's and Baker's testimony at trial. The jury was in the best position to judge the credibility of Miriam's testimony and the weight due to the evidence placed before it and to resolve any inconsistencies between Miriam's testimony at trial and the statements she made to the police on the night of July 15 and shortly thereafter. See Dobbs, 434 S.W.3d at 170; see generally Savage v. State, No. 02-05-00060-CR, 2005 WL 3343866, at *5 (Tex. App.—Fort Worth Dec. 8, 2005, pet. ref'd) (mem. op., not designated for publication) (restating testimony of police officers that it is very common for victims of domestic violence to recant their initial statements to police officers). We may not step into the role of the jury and re-evaluate the weight and credibility of the evidence. Montgomery, 369 S.W.3d at 192. The evidence in this case was sufficient to support the jury's finding that Appellant choked Miriam and impeded her normal breathing. See Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016) (holding that evidence was sufficient to show impeded breath where complainant testified that defendant tried to smother her with a pillow and she could not take deep breaths but did not lose consciousness and was never completely unable to breathe). We therefore overrule Appellant's first issue.
II. Evidence of mutual combat
In his second issue, Appellant argues that he presented sufficient evidence that he and Miriam were engaged in mutual combat. Appellant relies upon section 22.06 of the penal code, which provides that the victim's effective consent or the actor's reasonable belief that the victim consented to the actor's conduct is a defense to prosecution for assault. Tex. Penal Code Ann. § 22.06(a) (West 2011). But Appellant's argument misinterprets this statute and the case law construing it. As described by the court of criminal appeals, "The issue of mutual combat as a limitation upon the right of self-defense does not arise alone from the fact that the parties to the affray are mutually engaged in it. The issue arises out of an antecedent agreement to fight. The agreement must exist." Carson v. State, 230 S.W. 997, 998 (Tex. Crim. App. 1921). In his brief, Appellant does not direct us to any evidence—and we have not found any in our thorough review of the record—that Miriam agreed to fight Appellant beforehand, or that she ever consented to being hit and choked. Instead, Appellant directs us to Miriam's statements that the fight was mutual, that they were both upset, that she was mad, and that she threw things at him and kicked him. Miriam's use of the word "mutual" does not provide evidence of an antecedent agreement to fight, and her testimony is, at most, evidence that "[both] parties to the affray [were] mutually engaged in it." See id. We therefore overrule Appellant's second issue.
III. Jury instruction regarding mutual combat
In his third issue, Appellant argues that the trial court erred in failing to submit a charge that included an instruction related to mutual combat.
Even if we were to assume, without deciding, that Appellant did not forfeit this issue by failing to request an instruction on the issue or failing to object to its omission from the charge, we have already held that there was no evidence to support a defensive theory of mutual combat. See, Section II. Therefore, the trial court did not err in failing to include an instruction on mutual combat in the jury charge. See, e.g., Stroud v. State, 24 S.W.2d 52, 54 (Tex. Crim. App. 1929) (holding that the trial court erred in charging the jury on mutual combat where it was not raised by the evidence because there was no evidence of an agreement to fight). We therefore overrule Appellant's third issue.
The trial court has no duty to instruct the jury sua sponte on unrequested traditional defenses and defensive issues because they are not "law applicable to the case." Thus, failure to request an instruction on such issues or to object to their exclusion results in their forfeiture on appeal, and we do not engage in an Almanza egregious-harm review. Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Tex. R. App. P. 33.1; Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). However, when a rule or statute requires an instruction under the particular circumstances of the case, that instruction is "the law applicable to the case" and we review its unobjected-to omission from the charge under Almanza. Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008). Appellant has cited to no authority to support his contention that an instruction was required under the circumstances of this case. --------
Conclusion
Having overruled Appellant's three issues, we affirm the judgment of the trial court.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: WALKER, MEIER, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: August 26, 2016